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| JUDICIAL REVIEW |
JUDICIAL REVIEW IS THE BASIC STRUCTURE OF THE CONSTITUTION
Research
Methodology
[A]
Aims and Objectives
Following
are the aims and objectives of the study.
1) To trace the source
and development of judicial review in India.
2) To identify the principles and procedures
adopted by the courts in India in relation to the legislative action of the
state.
3) To see how judicial review has maintained
the supremacy of the constitution by limiting the acts of legislatures which
are ultra vires?
[B]
Statement of Problem
In India the Courts
continue to review every form of State action, by it legislative,
administrative or judicial action. Further in the sphere of legislative action,
the courts put their shackles of review whether the rule is because of a
constitutional amendment, a statute, order, ordinance, regulation or anything
else. The courts also review the action of the judicial institutions where they
find the fairness to be lacking. Further, in India there has been a tremendous
development in the field of principles and procedures relevant to the system of
review. The Courts have developed the theory of basic structure of the
constitution, the theory of due process, the theory of judicial activism, the
theory of public interest litigation etc. The basic task of the Courts in India
is to uphold the Constitution, to protect the fundamental rights of the
individuals and enable the authorities of the State to implement the Directive
principles of State policy. In short, the courts have to exercise their power
of judicial review for the purpose of upholding the rule of law, the
sovereignty of the Republic and the principles of socialism, human rights and
good governance.
But the main thing is that the Constitution of India does
not clearly describe the system of Judicial Review. It rests upon the basis of
several articles of the Constitution. More over when a law is struck down by the Supreme Court as
unconstitutional, the decision becomes effective from the date on which the
judgment is delivered. Now a law can face Judicial Review only when a question
of its constitutionality arises in any case being heard by the Supreme Court.
Such a case can come before the Supreme Court after 5 or 10 or more years
after the enforcement of that law. As such when the Court rejects it as
unconstitutional, it creates administrative problems. A Judicial Review decision can create more problems than it solves. Sometimes Judicial Review is a source
of delay and inefficiency. The people in general and the law-enforcing agencies
in particular sometimes decide to go slow or keep their fingers crossed in
respect of the implementation of a law. They prefer to wait and let the Supreme
Court first decide its constitutional validity in a case that may come before
it at any time.
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| RESEARCH QUESTION |
[C] Research Questions
This research work is
done on the topic of “JUDICIAL REVIEW IS
THE BASIC STRUCTURE OF THE CONSTITUTION –COMMENT “The basic object behind
making this paper on this topic is to get knowledge in regard to trace out the
historical background of the issue. The
question that comes to mind is:-
(1) What is Judicial
Review?
(2) What is the
importance of Judicial Review?
(3) What is the process
of judicial review?
[D]
Method of Research
“Methodology”
implies more than simply the methods the researcher used to collect data. It is
often necessary to include a consideration of the concepts and theories which
underlie the methods. The methodology opted for the study on the topic may be
Doctrinal or Empirical.
Doctrinal research in law field indicates arranging, ordering and
analysis of the legal structure, legal frame work and case laws by extensive
surveying of legal literature but without any field work.
Empirical
research in law field indicates field visit and collection of
surveys and other materials by various means which include some questionnaires
and other interaction based methods which the researcher is free to adopt.
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| CHAPTER ONE |
INTRODUCTION
INTRODUCTION
The basic structure doctrine is an Indian judicial
principle that the Constitution
of India has certain basic features that cannot be altered or destroyed
through amendments by
the parliament. Key
among these "basic features", are the fundamental rights granted
to individuals by the constitution.
The
doctrine thus forms the basis of a limited power of the Supreme Court to review
and strike down constitutional amendments enacted by the Parliament which
conflict with or seek to alter this "basic structure" of the
Constitution. The basic structure doctrine applies only to constitutional
amendments
The doctrine thus forms
the basis of a limited power of the Supreme Court to review and strike down constitutional amendments enacted by the Parliament
which conflict with or seek to alter this "basic structure" of
the Constitution. The basic structure doctrine applies only to constitutional amendments.
So from this we can understand that judicial review is a process under which executive and (in some countries) legislative actions
are subject to review by the judiciary. A court with
judicial review power may invalidate laws and decisions that are incompatible
with a higher authority; an executive decision may be invalidated for being
unlawful or a statute may be invalidated for violating the terms of a written constitution. Judicial
review is one of the checks
and balances in
the separation
of powers: the power of the judiciary
to supervise the legislative and executive branches when the latter exceed
their authority. The doctrine varies between jurisdictions, so the procedure
and scope of judicial review may differ between and within countries.
In the
landmark case of Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 The Supreme Court first
time recognizes the concept of Basic Structure. In response to the Kesavananda
Bharati Judgment in an effort to reduce the power of the judicial review of the
constitutional amendments by the Supreme Court.
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| CHAPTER TWO |
Chapter
II:
JUDICIAL
REVIEW
[2.1]
What is Judicial Review?
Judicial
review is a judicial invention to ensure that a decision by the executive or a
public body was made according to law, even if the decision does not otherwise
involve an actionable wrong. The superior Courts developed their review
jurisdiction to fulfill their function of administering justice according to
law. The legitimacy of judicial review is based in the rule of law, and the
need for public bodies to act according to law.
The primary role of the
Courts is to uphold the fundamental and enduring values that constitute the
rule of law. Judicial review is not the same as an appeal. An appeal exists
when a statute provides that a decision can be appealed to a court. In an
appeal a judge will more clearly review the merits of the earlier decision.
Judicial
review in India is practiced in respect of any kind of State action, such as
legislative action, the administrative action or the judicial action, the
research paper is limited up to legislative action of the state.
[2.2]
What is the meaning & Definition of
Judicial Review?
The
word ‘review’ stands for an act of
inspecting or examining something with a view to correct it or to improve it.
This meaning shows that there is something which is already done by somebody
whose correction or improvement is envisaged in the process of ‘ review’ The word ‘review’ in the phrase ‘judicial review’ stands for something which
is done by a court to examine the validity or correctness of the action of some
other agency. Thus the power of the Judiciary to review and determine the
validity of a law or an order may be described as the power of “Judicial review”. It means that the
constitution is the supreme law of the land and any law inconsistent therewith
is void.
‘Judicial Review’
legislation or executive action can be defined as “Judicial review is the
ultimate power of any court to declare any act of legislatures or of executives
as unconstitutional and hence unenforceable
A)
Any law
B)
Any official action based upon a law
C)
Any other action by a public official
that it deems to be in conflict with the constitution.”
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| CHAPTER THREE |
CHAPTER III
SCOPE OF JUDICIAL
REVIEW
[3.1]
What is The Scope of Judicial Review?
In countries like India and U.S.A, which operate under a Federal
system of Government, there is a division of functions between the central
Government and the component state government. Such a division of functions is
an essential feature in any federal system, and the process of judicial review
makes the Courts responsible for enforcing the provisions of the constitution,
statute and the Rules of the federal system. This power necessarily includes
the authority to declare ultra vires any state legislation or other action of
the instrumentality of the state, which infringes on the constitutional
authority of the Central government or any other State in the federation. The
Supreme Court of India and the U.S.A. have a power to declare the Acts
of Parliament and Congress unconstitutional respectively. Courts call this the
judicial review over the acts of the Legislative and Executive Departments of
the Government. The Courts have the authority to declare actions of the other
two wings Invalid as contrary to the constitutional law. This system is termed
as ‘Judicial supremacy’. This is
enjoyed by the Indian and American courts No such authority resided in the
highest courts of England, France, Russia and Switzerland.
The principle of judicial review became an essential feature of written
Constitutions of many countries. Seervai in his book Constitutional Law of
India noted that the principle of judicial review is a familiar feature of the
Constitutions of Canada, Australia and India, though the doctrine of Separation
of Powers has no place in strict sense in Indian Constitution, but the
functions of different organs of the Government have been sufficiently
differentiated, so that one organ of the Government could not usurp the
functions of another.
[3.2]
What is The Importance of Judicial System?
The
justification for judicial review, or the right of the court to declare
legislative or executive unconstitutional. The Constitution states in article III, section 2 that, “The judicial power shall extend to all cases, in
Law and Equity, arising under this Constitution, Therefore, Judicial review is
an implied power that determines whether or not legislation is constitutional
and is necessary for the protection of the Constitutional rights of the people.
The judiciary is not a representation of a particular party as it is in the legislative and executive branches. Although justices belong to different parties and they may have views determined by their political beliefs, the role of a justice is to carefully determine and interpret laws based on the Constitution. To do this, they must provide legitimate reason to defend their decisions and therefore, judicial review is beneficial for a successful nation.
The judiciary is not a representation of a particular party as it is in the legislative and executive branches. Although justices belong to different parties and they may have views determined by their political beliefs, the role of a justice is to carefully determine and interpret laws based on the Constitution. To do this, they must provide legitimate reason to defend their decisions and therefore, judicial review is beneficial for a successful nation.
[3.3] What is The Process of
Judicial Review?
JUDICIAL REVIEW is not a re-run on the merits of the decision but a
challenge to the lawfulness of the decision that was made. If a Judicial Review
claim is successful the usual result is that the decision is "quashed" or nullified. In turn this usually
means that the decision has to be taken again. Certain Procedures are:-
ü TIME LIMIT -
Judicial Review requires permission from the Court. One
of the most important requirements is that the application for permission for
judicial review has to be made within the time limits set by the Court rule.
From 1 July 2013
all planning cases must be started within 6
weeks from the date of the decision. For non-planning cases the time
limit may continue to be that a claim is prompt and in any event within 3 months. The time limits are
strictly applied.
ü PRE – ACTION PROTOCOL
The first step in the judicial review procedure is to write a
formal letter to the proposed defendant setting out your proposed claim and
what you are seeking. This is known as a PRE-ACTION PROTOCOL letter. Normally a response is expected
within 14 days. However, in cases
challenging a grant of planning permission, the 6 week time limit to issue a claim does not leave much time for
pre-action correspondence, although you must try to complete it if possible.
ü PERMISSION
The first stage is to apply for "permission" to apply for Judicial Review. In statutory
(A right to challenge administrative decision-making or action provided for
specifically by statute) appeal cases, permission is not necessary.
The process of applying for permission is very much simple - In principle - you
complete a short claim form, setting out your facts, your grounds (why you
consider the decision was unlawful) and certain other details; you provide
documents explaining the background to the case and relevant legal provisions;
and you lodge these papers with the Administrative Court with a modest fee.
The court then sends the papers to a judge for a decision on paper. If
permission is refused, you can "renew" the decision to be heard in
open court
ü THE SUBSTANTIVE STAGE
If permission is granted, the claim proper can proceed.
ü JUDGEMENT
The judge may deliver judgment there and then, ex tempore, or
orally shortly afterwards, or it may be "handed-down" in writing
later.
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| CHAPTER FOUR |
CHAPTER IV
CASE STUDY
LANDMARK
CASES RELATING TO THE BASIC
Shankari
Prasad v. Union of India AIR 1951 SC 455
[A]
Provision of Law
Fundamental rights, the basic human rights
are enforceable. These fundamental rights are protected by the court of law by
issuing writs. The Supreme Court applied the principle of harmonic
construction as there is a conflict between Article 368 and Article 13. The
provisions of constitution should be interpreted in a manner that they do not
conflict with each other and there must be harmony among them.
[B]
Fact of the Case
It is a landmark case in
the basic structure of our constitution. In the cases, the power to amend the
rights had been upheld on the basis of Article
368. Though under Article 352 and 356, the fundamental rights or some parts of them can be suspended
during emergency yet they can be amended by Parliament. The constitutional
validity of first amendment (1951), which curtailed the right to property, was challenged.
[C]
Issues Involved
Article 13 of
the original constitution said that the state shall not make any law that takes
away or abridges the rights given to the citizens in Part III and any such law made in contravention of this article
shall be deemed void to the extent of contravention. Therefore, the parliament
cannot amend the constitution in a way that takes away the fundamental rights
of the citizens.
It was challenged that Amendment (in this case an amendment to Article 31A and 31B) that take away
fundamental right of the citizens is not allowed by article 13. It was argued
that “State” includes parliament and “Law” includes Constitutional Amendments.
[D] Judgement
Referred by the Court
The Supreme Court's position on constitutional amendments
laid out in its judgement is that Parliament can amend the Constitution but
cannot destroy its "basic structure". It was
held that ‘Law’ in Article 13 is ordinary law made under the legislative
powers. And therefore, the parliament has power to amend the constitution.
[E] Judgement
The SC
ruled out that the power to amend the Constitution under Article 368 also
included the power to amend fundamental rights and that the word “law” in
Article 13 (8) includes only an ordinary law made in exercise of the
legislative powers and does not include Constitutional amendment which is made
in exercise of constituent power. Therefore, a Constitutional amendment will be
valid even if it abridges or takes any of the fundamental rights. Chief Justice Subba
Rao writing for the majority six judges in special bench of eleven
overruled the previous decisions.
[F]Own Observation
“Whether any part of the Fundamental Rights provisions of the
constitution could be revoked or limited by amendment of the constitution”. The basic structure doctrine is an Indian judicial principle that the Constitution of
India has certain basic
features that cannot be
altered or destroyed through amendments by the parliament.
Key among these "basic
features", are the fundamental
rights granted to individuals by the constitution.
Golak Nath vs. the
State of Punjab AIR 1967 1643, 1967 SCR
(2) 762)
[A]
Provision of Law
The
issues involved were whether Amendment is a “law” under the meaning of Article
13(2), and whether Fundamental Rights can be amended or not.
Fundamental rights, the basic human rights are enforceable.
[B]
Fact of the Case
The
family of Henry and William Golak Nath held over 500 acres
of farmland in Jalandhar, Punjab. In the phase of the 1953 Punjab Security and Land
Tenures Act, the state government held that the brothers could keep only thirty
acres each, a few acres would go to tenants and the rest was declared
'surplus'. This was challenged by the
Golak Nath family in the courts and the case was referred to the Supreme Court
in 1965. The family filed a petition under Article 32 challenging the 1953 Punjab Act on the ground that it denied them
their constitutional rights to acquire and hold property and practice any
profession (Articles 19(f) and (g))
and to equality before and equal protection of the law (Article 14).
[C]
Issues Involved
The Golaknath case was a landmark case in the
fight between Indian Judiciary and Legislature regarding the amenability of the
constitution. The case involved a dispute between the Golaknath brothers and
the state of Punjab (India) (1967).
[D] Judgement
Referred by the Court
The
judgment reversed the Supreme Court's earlier decision which had upheld
Parliament's power to amend all parts of the Constitution, including Part III
related to Fundamental Rights. The judgement left Parliament with no power to
curtail Fundamental Rights. The Supreme Court, by thin majority of 6:5, held
that a constitutional amendment under Article 368 of the Constitution was an
ordinary 'law' within the meaning of Article 13(2) of the Constitution.
[E] Judgement
However, in the
Golaknath Case, the Supreme Court of India held the
Fundamental Rights as sacrosanct (Must be kept sacred) and unalterable.
In held that a constitutional amendment also came under the definition of
“ordinary law” under Article 13 and hence was subject to judicial review. It
held (by thin majority of 6:5) that the Punjab Law was ultra vires the
constitution.
[F]Own Observation
Parliament
passed the 24th Amendment in 1971 to abrogate (Revoke formally) the Supreme
Court judgement. It amended the Constitution to provide expressly that
Parliament has the power to amend any part of the Constitution including the
provisions relating to Fundamental Rights. This was done by amending articles
13 and 368 to exclude amendments made under article 368, from article 13's
prohibition of any law abridging or taking away any of the Fundamental Rights.
Kesavananda Bharati v. State of Kerala AIR 1973 4 SCC 225
[A]
Provision of Law
The Supreme Court laid
down the Basic
Structure Doctrine in this case. According to this , some
of the provisions of the
Constitution of India form its basic structure which are not amendable by Parliament by exercise of its constituent power under Article 368.
Constitution of India form its basic structure which are not amendable by Parliament by exercise of its constituent power under Article 368.
[B]
Fact of the Case
In February 1970 Swami Sri HH Sri Kesavananda Bharati, Senior Plaintiff and head of "Edneer Mutt" - a Hindu Mutt situated
in Edneer, a village in Kasaragod
District of Kerala, challenged the Kerala government's attempts, under two state land reform
acts, to impose restrictions on the management of its property. Although the
state invoked its authority under Article
21, a noted Indian jurist, Nanabhoy
Palkhivala, convinced the Swami into
filing his petition under Article 26,
concerning the right to manage religiously owned property without government
interference. Even though the hearings consumed five months, the outcome would
profoundly affect India's democratic processes.
[C]
Issues Involved
The Story of tussle between
Articles 13(2) and 368: The Bihar Land Reforms Act, 1950 which was in
contravention of then fundamental Right to Property (Article 31). It was hit by
13(3) as it was infringing Article 31 (Part III, Fundamental Rights). The Act
was challenged in High Court which held the act to be unconstitutional for
being violative of Article 14 of the Constitution.
[D] Judgement
The
Supreme Court reviewed the decision in Golaknath
v. State of Punjab, and considered the validity of the 24th, 25th,
26th and 29th amendments. The Bench gave eleven separate judgments, which
agreed on some points and differed on others. The 13-judge Constitutional bench of
the Supreme Court deliberated on the limitations, if any, of the powers of the
elected representatives of the people and the nature of fundamental rights of
an individual. In a sharply divided verdict, by a margin of 7-6, the court held
that while the Parliament has "wide" powers, it did not have the
power to destroy or emasculate the basic elements or fundamental features of
the constitution.
[E]Own Observation
From this
Kesavananda judgment we can see that the extent to which Parliament could
restrict property rights, in pursuit of land reform and the redistribution of
large landholdings to cultivators, overruling previous decisions that suggested
that the right to property could not be restricted. The case was a culmination of
a series of cases relating to limitations to the power to amend the Indian
constitution.
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| CONCLUSION |
CHAPTER V
Conclusion
Judicial Review refers to the power of the
judiciary to interpret the constitution and to declare any such law or order of
the legislature and executive void, if it finds them in conflict the
Constitution of India.
In India, judicial review
is not an event of sudden emergence but its gradual evolution depended on the
constitutional ideas in different stages of Indian constitutional history. The
Constitution of India is the supreme law of the land. The Supreme Court of
India has the supreme responsibility of interpreting and protecting it. It also
acts as the guardian-protector of the Fundamental Rights of the people. For
this purpose, the Supreme Court exercises the power of determining the
constitutional validity of all laws.
It has the power to reject
any law or any of its part which is found to be unconstitutional. This power
of the Supreme Court is called the Judicial Review power. State High Courts
also exercise this power but their judgments can be rejected or modified or
upheld by the Supreme Court.
Both the Supreme Court and
High Courts exercise the power of Judicial Review. But the final power to
determine the constitutional validity of any law is in the hands of the Supreme
Court of India. Judicial Review applies only to the questions of law. It cannot
be exercised in respect of political issues. Judicial Review in India is
governed by the principle: ‘Procedure Established by Law’. Under it the court
conducts one test, i.e., whether the law has been made in accordance with the
powers granted by the Constitution to the law-making body and follows the
prescribed procedure or not. It gets rejected when it is held to be violative
of procedure established by law. The problem is that the Constitution of India does
not clearly describe the system of Judicial Review. It rests upon the basis of
several articles of the Constitution. Although Judicial Review affords protection against legislative
excesses and executive arbitrariness. The Indian judiciary is the best filled
to the role of an umpire for deciding the proper functioning of the
constitution. Judiciary has saved the constitution and democracy.
Bibliography
Books
(1)
Dr.
Upadhaya J.J.R (Administrative Law), Central Law Agency, 10th Edition
Web
file:///C:/Users/user/Desktop/12.%20Sanjay%20Satyanarayan%20Bang%20(1).pdf
Dictionary
CONCISE LAW DICTIONARY (LEXIS NEXIS) FIFTH EDITION.
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| KEEP FAITH |
न्यायिक समीक्षा संविधान की व्याख्या करने और विधायिका और कार्यकारी शून्य के इस तरह के कानून या आदेश की घोषणा करने के लिए न्यायपालिका की शक्ति को संदर्भित करती है, अगर यह उन्हें भारत के संविधान के संघर्ष में पाती है।
न्यायिक पुनरावेदन संविधानको व्याख्या गर्न र विधानमन्त्री र कार्यकारी शून्यको कुनै पनि कानुनी आदेश वा घोषणा गर्न न्यायपालिकाको शक्तिलाई बुझाउँछ, यदि उनीहरूले भारतको संविधानको विवादमा पार्यो भने।
বিচারিক রিভিউ সংবিধানের ব্যাখ্যা করার জন্য বিচার বিভাগের ক্ষমতা বোঝায় এবং বিধানসভা ও নির্বাহী অকার্যকর কোনও আইন বা আদেশ ঘোষণা করে, যদি এটি তাদের সংবিধানে ভারতের সংবিধানে খুঁজে পায়।
Die gerichtliche Überprüfung bezieht sich auf die Befugnis der Justiz, die Verfassung auszulegen und ein solches Gesetz oder eine Anordnung des Gesetzgebers und der Exekutive für nichtig zu erklären, wenn sie der Verfassung von Indien widerspricht
Le contrôle juridictionnel fait référence au pouvoir du pouvoir judiciaire d'interpréter la constitution et de déclarer nulle loi ou ordonnance de la législature et de l'exécutif si elle les trouve en conflit avec la Constitution indienne.
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